A New "Poster Girl" For Insurers

Meet Terri Truitt, a Texas lawyer who is the new poster girl for the insurance defense bar.
Ms. Truitt was on long term disability with Unum for years while at the same time apparently performing tasks she allegedly wasn’t physically able to perform and acting like a world traveler while she said her disability prevented her from traveling on her job.

She received substantial benefit payments from Unum from 2002 till 2009 when Unum denied her claim based upon new insights into her actual life. These insights were provided by 600 emails and travel itineraries covering several years.

Ms. Truitt’s demise was caused by a former boyfriend who blew the whistle and brought her LTD benefits run to close. Apparently, there is truth in the saying, “Hell hath no fury like a ‘man’ scorned”.

The saga begins in 2003 when she began receiving benefits for leg pain which prevented her from lifting, walking or sitting. The disability made carrying bags and sitting on a plane for long periods impossible, she said, and these tasks were an integral part of her occupation as an attorney required to travel and carry bags and exhibits.

Although surveillance videos and medical evaluations obtained by Unum indicated otherwise, Ms. Truitt was able to defend her receipt of benefits until the “ex-friend” provided emails, photos and travel itineraries showing her doing everything she said she couldn’t do. Her benefits were halted but she managed to get Unum, one of the toughest on claims in the insurance business, to reinstate them

Ultimately, Unum prevailed in court. The Truitt opinion details a high-flying life which would have been impossible with the disability she claimed. The opinion is worth reading, Truitt v. Unum Life, 2013 WL 4777322 C.A. 5 (Tex.) (No. 12-50142), to show the details of how flagrantly Ms. Truitt appears to have flouted the rules of disability.

Even though Unum is suing for the return of $1 million it claims was wrongfully paid to her as benefits, the damage to others caused by Ms. Truitt’s apparent conduct is much worse.

Hurt more are the thousands upon thousands of ERISA and DI claimants who are suffering from disabilities that really prevent them from working and now will have to overcome the Truitt case which is bound to be raised by insurance companies whose first instinct is to believe that all claimants are looking for a free handout.

That’s why we called Ms. Truitt a “poster girl” for the defense bar. Those of us who practice disability claims law for plaintiffs will no doubt have her case thrown up to us time and again in future. Our own experience, however, is that very few people seek disability benefits without legitimately needing them. We find that the vast majority of people want to be productive, accomplish something and earn their own way in life.

Of course, defense counsel will at the same time ignore the Court’s awareness in the Truitt opinion of Unum’s history of misconduct in ERISA matters. We, like Unum, do not in any way condone Miss Truitt’s apparent conduct in this matter. We also point out to Unum that history counts.

Insurance companies try to paint claimants as dishonest malingerers who are looking to avoid work and receive insurance benefits. They tend to paint all claimants with a broad brush. Truitt shows that sometimes they may be right.

In the vast majority of cases, they are wrong!

This Proof Is Not In The Pudding

The Social Security Administration has paved the way for the courts on the issue of “malingering” and we can only hope the courts follow its lead – and quickly. SSA evaluated so-called “symptom validity tests”, used by many insurance companies against disability income claimants and found the tests not worth the money they cost.

A “symptom validity test” consists of a series of written questions, the answers to which are supposed to indicate how well a patient is expressing his or her symptoms to the test giver. The answers to one particular section of the test is supposed to indicate whether the patient is “malingering”, according to the test publisher. (According to a Wikipedia entry, the author of this test worked mainly for insurance companies in personal injury cases).

Insurers deny on the basis of these tests alone. See, for example, Smith v Pension Committee of Johnson & Johnson, 2012 WL 1918822. Should the test indicate that an insured is out of the test’s “normal” range, the insurance company claimsthe insured is not cooperating and labels him or her a “malingerer”. We represented a client in just such a situation about a year ago.

Although the tests may be useful as one part of a battery of diagnostic tools when evaluating disability claimants, insurers are quick to jump on the “symptom validity test” results alone when it gives them ammunition to deny a claim.

For too many years, disability income insurance companies have used for-hire doctors who give “symptom validity tests” to knock out perfectly valid disability income claims on the ground that the claimant is “malingering”. What is overlooked many times by a court is that the for-hire doctors have more reason to fudge their reports than do the people being tested. Many of these doctors make hundreds of thousands of dollars a years working for insurance companies. How long do you think they would work for insurers if they found many claimants were entitled to benefits?

The SSA is heavily involved in determining the same issues disability income insurance companies have to determine – whether an illness or injury disables a person enough so that the person is unable to perform his or her occupation. The SSA doesn’t baby claimants. Only a third of original applications are approved.

So, when SSA says the “symptom validity test” is not helpful in determining malingering, why don’t insurance companies “own up” and do the same?

And, if the insurance companies won’t do it, why don’t the courts?



Chronic Fatigue Is Real

Chronic fatigue syndrome is not hoax. As long-time disability income insurance attorneys, we have seen too many people devastated by this disease to believe that it is not really a severe illness.

People in our line of work generally develop a knack for spotting falsity in claimants trying to wheedle their way into a long term benefits bonanza while still having plenty of capacity to work. We have always found that people truly suffering from CFS are really ill, although medicine has failed to find a viral or bacterial culprit.

Now, it appears that the causes of this devastating affliction are starting to see the light of day.

In an Op-Ed piece in the New York Times, author Hillary Johnson reports that a researcher has found a human gammaretrovirus, XMRV, was present in tissue samples of a significant number of chronic fatigue syndrome patients, going back as far as 1984. Recently discovered, XMRV is the third human gammaretrovirus, the other two being H.I.V. and human lymphotropic viruses, which cause leukemia and lymphoma.

For the full text of the article, see http://www.nytimes.com/2009/10/21/opinion/21johnson.html?_r=1&scp=3&sq=XMRV &st=cse.

Hopefully, this discovery is the key to unlocking the mystery of CFS, which has plagued an expanding number of people down through the years. Finding a cause for this affliction would be the first step in finding a cure.

Having seen firsthand the devastation this malady causes in a person’s quality of life, a cure can’t come too soon.